Legal Position with Trust Maanda

The law does not apply retrospectively

IN general, the law does not apply retrospectively. This means a law once enacted affects future conduct.

This is so in order for citizens to regulate their conduct in terms of a law that exists.

A law cannot therefore be made to apply retrospectively.

It is a principle of legal policy that, changes in the law should not take effect retrospectively.

An exception to this rule may be in relation to except in relation to procedural matters.

The court, when considering, in order to give effect to the legislative intention, should presume that the legislator, intended to observe this principle. So, there is a presumption that the lawmaker did not intend to make the law to apply retrospectively.

The rule that, where a statutory provision is amended, retrospectively or otherwise, while a matter is pending, the rights of the parties to the action, in the absence of a contrary intention, must be decided in accordance with the statutory provisions in force at the time of the institution of the action.

This general rule can, however, be departed from where it is expressly enacted that an enactment shall be retrospective.

If the language employed in the enactment necessarily implies that the legislature intended a particular section to have a retrospective operation, the courts will give such an operation.

In Curtis v Johannesburg Municipality 1906 TS 308 at 311 INNES CJ said:

“The general rule is that, in the absence of express provision to the contrary, statutes should be considered as affecting future matters only; and more especially that they should if possible be so interpreted as not to take away rights actually vested at the time of their promulgation.”
Where there is retrospectivity, the courts must take care always to ensure that retrospectivity is confined to the exact extent which the section of the Act provides.

In Agere v Nyambuya 1985 (2) ZLR 336 (S) at 338 G – 339A GUBBAY JA (as he then was) stated the general rule as follows: “It is a fundamental rule of construction in our law, … that there is a strong presumption that retrospective operation is not to be given to an enactment so as to remove or in any way impair existing rights or obligations unless such a construction appears clearly from the language used or arises by necessary implication. For instance, where it is expressly retrospective, or deals with past events, or concerns a matter of procedure, practice or evidence. The supposition is that the Legislature intends to deal only with future events and circumstances.”

In S v Mutandwa and Another 1973 (3) SA 391 (R), two accused persons were convicted of stock theft on September 29, 1976, and sentenced to the mandatory minimum sentence promulgated in the Stock Theft Amendment Act, 10 of 1976.

The judges set aside the mandatory minimum sentences because the trial magistrate overlooked the fact that the Stock Theft Amendment Act was not operative at the time of the commission of the offence. The issue there was whether the provisions of Section 12 applied retrospectively in respect of offences committed before it came into operation. The court said it was a fundamental rule of law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act or arises by necessary and distinct implication.

The presumption against retrospectivity is rebutted by a statutory provision or Act either expressly or by necessary implication
The guidance emanating from the jurisprudence of our courts is that where the Legislature intends that a provision should have retrospective effect it states so in clear and unequivocal terms.

In Greatermans Stores (1979) (Private) Limited T/A Thomas Meikles Stores And Another V (1), the Minister Of Public Service, Labour And Social Welfare And Another CCZ2/18, the main allegation was that the provision that required employers who had terminated employment of some employees on notice according to the famous Zuva judgment, to pay the former employees some money the minimum retrenchment package was unconstitutional because it gave retrospective effect to a new obligation imposed on an employer.

The obligation was retrospectively imposed on all employers who terminated employees’ contracts on notice on or after July 17, 2015.
The court decided that there was no constitutional provision which prohibited the use by Parliament of the method of retrospectivity to implement civil legislation and that there was no infringement of any fundamental rights by the retrospective application.

The reason why retrospective legislation is presumed against is that persons should be able to plan their conduct with knowledge of the legal consequences. Past transactions or conduct must not be disturbed. Persons should not be penalised for what they did before there was no law against it.

TRUST MAANDA is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263772432646